Citation Nr: 9808336
Decision Date: 03/19/98 Archive Date: 04/02/98
DOCKET NO. 93-17 670 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to service connection for a partial tear of the
posterior horn of the medial meniscus, right knee, secondary
to a gunshot wound to the left thigh.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The appellant
ATTORNEY FOR THE BOARD
Nancy R. Kegerreis
INTRODUCTION
The veteran served on active duty from May 1987 to July 1987
and from December 1990 to December 1992.
This matter comes before the Board of Veterans' Appeals
(Board) from a November 1995 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida, which denied an increased evaluation
for a residual of a gunshot wound to the left thigh and
service connection for a partial tear of the posterior horn
of the medial meniscus of the right knee secondary to a
gunshot wound of the left thigh. In January 1997, the case
came before the Board, which denied the increased evaluation
claim and remanded the secondary service connection claim for
further development.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, essentially, that, because his job
requires him to be on his feet eight hours a day, his left
leg becomes extremely painful, causing him to compensate by
leaning on his right leg. This behavior has, in turn,
resulted in a disability of his right knee, with symptoms of
pain, swelling, and “popping.” He maintains that a VA
orthopedist told him that the right knee disability was
related to, or secondary to, the gunshot wound of the left
thigh and that he would at some point require arthroscopic
surgery.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the appellant has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that his claim for
service connection for a partial tear of the posterior horn
of the medial meniscus, right knee, secondary to a gunshot
wound of the left thigh is well grounded.
FINDING OF FACT
The claim for service connection for a partial tear of the
posterior horn of the medial meniscus, right knee, secondary
to a gunshot wound of the left thigh is not supported by
cognizable evidence showing that the claim is plausible or
capable of substantiation.
CONCLUSION OF LAW
The partial tear of the posterior horn of the medial meniscus
of the veteran's right knee is not proximately due to or a
result of the service-connected residual of a gunshot wound
to the left thigh. 38 U.S.C.A. § 5107 (West 1991);
38 C.F.R. § 3.310 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Secondary service connection shall be awarded when a
disability is proximately due to or the result of a service-
connected disease or injury. 38 C.F.R. § 3.310(a) (1997).
Additional disability resulting from the aggravation of a
non-service connected condition by a service-connected
condition is also compensable. Allen v. Brown, 7 Vet.
App. 439, 448 (1995)(en banc). As is true for all claims, a
secondary service connection claim must be supported by
evidence sufficient to justify a belief by a fair and
impartial individual that the claim is well grounded.
38 U.S.C.A. § 5107(a) (West 1991). To be well grounded, a
claim must be “plausible;” that is, it must be one which is
meritorious on its own or capable of substantiation. Such a
claim need not be conclusive, but only possible to satisfy
the initial burden of § 5107(a). Epps v. Gober, 126 F. 3d
1464 (1997), adopting the definition in Epps v. Brown, 9 Vet.
App. 341, 344 (1996). Where the determinative issue involves
medical etiology or a medical diagnosis, competent medical
evidence that a claim is “plausible” or “possible” is
generally required. Grottveit v. Brown, 5 Vet. App. 91, 93
(1993). A claim which is not well grounded precludes the
Board from reaching the merits of a claim. Boeck v. Brown,
6 Vet. App. 14, 17 (1993).
To establish that a claim for secondary service connection is
well grounded, a veteran must present medical evidence of a
current disability and, credible, i.e. satisfactory, evidence
that his service-connected disorder caused his current
disability. Credible evidence as to causation requires
competent medical evidence. Libertine v. Brown, 9 Vet.
App. 521, 524 (1996); Caluza v. Brown, 7 Vet. App. 498, 506
(1995).
It is the veteran’s contention that he has a disability of
the right knee which has been caused by "abuse” of his right
leg.” He states that, because he has favored his left leg
due to pain from his service-connected gunshot wound, he has
been forced to put unusual stress on his right leg. He notes
that work requirements at his job at a supermarket involve
unloading trucks, standing on his feet for eight hours, and
walking all over the store. When he first began to notice
pain in his right knee, he underwent magnetic resonance
imaging (MRI) at the VA, which had revealed a partial tear of
the medial meniscus. He adds that he did not file a Workers’
Compensation claim because he suspected that the supermarket
would blame his right knee disability on the left leg injury.
Because the right knee claim is so closely intertwined with
the left leg disability, the Board must briefly consider the
severity of the left leg disability. In its January 1997
decision, the Board determined that the RO had correctly
evaluated a residual of a gunshot wound of the left thigh at
10 percent.
Evidence in the veteran’s service medical records discloses
that he sustained a gunshot wound to the left thigh in March
1990. Physical examination in May 1991 revealed that he had
full active range of motion of his knee and hip. The distal
neurovascular status was within normal limits, with normal
femoral, superficial, and deep peroneal nerve function. The
prognosis at that time was that he should regain full
function of his left lower extremity, with perhaps some
residual quadriceps weakness and local numbness about the
wound site. He was to be continued in an aggressive physical
therapy program for rehabilitation.
A Physical Evaluation Board in October 1992 found the veteran
unfit for full duty because of physical disability due to
significant damage to the proximal left anterior thigh
muscles from an M-16 gunshot wound, with residual weakness
and increased fatigability in the thigh extensors. A Navy
orthopedist documented some inconsistency in strength test
results, which indicated submaximal effort on the veteran’s
part; he believed that the residual weakness in the thigh
extensors would not preclude the veteran from performing his
required duties in the military. Civilian orthopedic and
physical therapy evaluation reports, however, documented
definite weakness and expressed significant doubt about the
veteran’s ability to perform the rigorous physical
requirements of the Marine Corps, especially the three-mile
run. The veteran was given the benefit of the doubt that the
injury would preclude adequate performance of his duties.
In February 1993, the veteran underwent a VA disability
evaluation examination. The right knee was not specifically
examined at this time. It was noted, however, that his gait
was normal and that on being asked to lift his left leg to
his chest, he was able to do so with ease. Muscle of both
thighs appeared to be normal.
Outpatient clinical notes in September 1995 reveal that an
MRI was done of the veteran’s right knee because of
complaints of pain. It was stated that the veteran believed
that his right knee pain was due to stress from an injury to
the left leg from gunshot wound in Kuwait.
A November 1995 VA orthopedic examination noted a present
complaint of right knee pain and weakness. X-rays of both
knees taken in August 1995 had reportedly been normal. Also
in August 1995, the veteran had had an MRI of his right knee,
explaining that, following the injury to his left leg, he
felt that he was putting more strain on his right leg,
causing his right knee bother him. The MRI revealed a grade
II degenerative tear of the posterior horn of the medial
meniscus. There was no specific examination of the right
knee at this time. The examiner did report that muscle
strength in the right thigh was 5/5 and in the right lower
leg was 5/5. Muscle strength in the left upper thigh was 4/5
and in the left lower leg was 4/5.
Lay evidence submitted in December 1995 consisting of
statements from the veteran’s co-workers indicated that the
veteran was often in pain in the area of the gunshot wound to
the left thigh. No specific reference was made to a right
knee disability.
In January 1997, the issue came before the Board, which
remanded the issue, noting that during an April 1996 personal
hearing, the veteran had testified that a VA physician had
verbally provided an opinion that the right knee disability
was related to, or secondary to, the gunshot wound of the
left thigh. The Board concluded that, since VA was thereby
put on notice of the existence of evidence which, if true,
would render the secondary service connection claim well
grounded, the RO should obtain any such evidence available.
Accordingly, the remand requested the RO to ask the veteran
to identify all providers from whom he had received post-
service treatment for his claimed right knee disability and
to submit a statement from the VA physician who reportedly
linked his right knee disability to the left thigh injury or
to obtain and submit such opinion from any other physician.
The August 1995 MRI examination report was also requested.
Should a medical opinion from this or any source be obtained
which would link the right knee disability to service or to a
service-connected disability, the veteran was to be scheduled
for VA examination.
In February 1997, the RO obtained a copy of the September
1995 MRI of the right knee, which reported Grade II
degeneration of the posterior horn of the medial meniscus.
Also in February 1997, the RO sent a letter to the veteran
with the above request at his current address of record.
Since the veteran did not respond to this request, the case
was returned to the Board.
The Board acknowledges that the veteran apparently has a tear
of the posterior horn of the medial meniscus. Despite a
thorough review of the records, however, no evidence has been
found which would establish any medical relationship between
this right knee meniscal tear and the service-connected left
leg injury, other than the veteran’s contentions. There are
no reports of orthopedic examinations, either VA or private,
or other clinical evidence, which supports this claim.
Although requested to provide specific information which
might have well-grounded this secondary service connection
claim, the veteran did not do so. The duty to assist is not
always a one-way street. If a veteran wishes help, he cannot
passively wait for it in those circumstances where he may
have information that is essential to his claim. Wood v.
Derwinski, 1 Vet. App. 190, 193 (1991).
Accordingly, the claim for service connection for a tear of
the posterior horn of the medial meniscus, right knee,
secondary to a gunshot wound of the left thigh is denied as
not well grounded.
The Board recognizes that the RO denied the veteran’s claim
on the merits, whereas the Board has concluded that the claim
is not well grounded. The United States Court of Veterans
Appeals has held that when an RO does not specifically
address the question whether a claim is well grounded, but
proceeds to adjudication on the merits, there is no prejudice
to the veteran solely from the omission of the well-grounded
analysis. Meyer v. Brown, 9 Vet. App. 425, 432 (1996).
Furthermore, the Board views its discussion as sufficient to
inform the veteran of the elements necessary to submit a
well-grounded claim for service connection for the claimed
condition and the reasons why his current claim is
inadequate. Robinette v. Brown, 8 Vet. App. 69, 77-78
(1996).
ORDER
Service connection for a tear of the posterior horn of the
medial meniscus, right knee, secondary to a gunshot wound of
the left thigh is denied.
NANCY I. PHILLIPS
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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